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An introduction to this diary series can be found here. Jim Crow 2.0

President Obama's strong showing in the electoral vote in the 2012 election has the Republican National Committee and its house organ Fox News in a lather of hysteria.

The GOP's Electoral College Scheme

In a number of the battle ground states Obama took all of the electoral votes under the terms of the winner take all allocation system. However as a result of Republican gerrymandering of congressional districts they were able to retain a majority in the House of Representatives. This was not a case where the winner of the electoral vote was different from the winner of the popular vote. Obama won there too, but not by as large a margin. Since the Republicans didn't get the outcome they wanted they are pursuing plans in several states where they control state government to change the allocation of electoral votes to individual congressional districts rather than on a state wide basis.

Exploring some history of the constitutional arrangements for elections seems like a useful undertaking at this point. Many of the framers of the constitution were still attached to prevailing British notions about the pitfalls of popular democracy. Despite the ringing declarations of enlightenment philosophy contained in the Declaration of Independence, the constitution was influenced by views that government is something best conducted by the governing classes. The US Senate was modeled after the British House of Lords. Even though the new nation moved away from the notion of hereditary privilege, the intent was to create a body with some detachment from the fray of political competition. To that end membership was allocated equally to all states regardless of their population and they were to be indirectly elected by state legislatures rather than by popular vote.

When it came to the election of the president and vice-president the arrangements were even more indirect. States were allocated electoral votes by adding the number of their congressional representatives to their two senators. Beyond that it gives almost complete discretion to the state legislatures to determine how their electors are to be chosen. The only restriction that it imposes is that they cannot be federal office holders. The 12th amendment to the constitution changed the mechanism for dealing with the outcomes of elections, but the basic structure of the electoral college is still with us.

For the first several decades of the nation states experimented with various approaches to selecting their electors. In some they were appointed by the legislature and were selected by popular vote in others. It was not until 1871 that all states held a popular vote in the presidential election. It was after the 1824 election that a movement toward the winner take all system began to gather force. Here is a more detailed history of the many permutations that the politics of the electoral college has gone through. Maine and Nebraska still do not allocate their votes on a winner take all basis. There have been a number of occasions when electors have voted for someone other than the candidate to whom they were pledged. Faithless elector
There is considerable variation among the states in the way that electors are selected and in attempts or the lack thereof to control their voting.

The important point here is that there are no constitutional restrictions on the operation of the electoral college. States have and will likely continue to make changes in the way that they do it. The proposals that are being made to change allocation are entirely legal.

In 1913 the 17th amendment established the direct popular election of US senators. It was born out of the ferment of the progressive era. There was a serious effort in congress to abolish the electoral college following the close and chaotic 1968 election. There was significant national support for the proposal but it was blocked in the senate by filibusters from southern senators. The Warren court issued a series of decisions in reapportionment cases establishing principles of equal representation that reflect notions of popular sovereignty as expressed in the slogan one person one vote. However, the US senate and the electoral college were sheltered from those rulings since those arrangements are written into the constitution.

The electoral college does not reflect contemporary notions of popular sovereignty. There is almost always some discrepancy between the results of the electoral vote and the popular vote. There have been occasions when the winner of the popular vote did not become president. The 2000 election is the one of most recent memory. The electoral college generally gives some statistical advantage to states with smaller populations over those with the largest populations. In 2007 the California Republican Party sponsored a ballot initiative to allocate the electoral vote of the state with the largest population on the basis of congressional districts. Since California has a very strong Democratic majority it went down to defeat.

The present demographic trends discussed in the introductory diary favor a growing population advantage for the Democratic Party as it is presently configured. It therefore makes strategic sense for the Republicans who hope to retard these trends and the influence of the emerging non-white majority to push for changes which further dilute the power of the popular vote. There is only one thing that would make this problem go away conclusively is a constitutional amendment abolishing the electoral college. There seems to be scant prospect of that happening. There is a movement which is attempting to build an end run around the problem. National Popular Vote Interstate Compact While it has the advantage of avoiding a constitutional amendment, it is not surprising that it is only prevailing in the states with large populations that are the most disadvantaged by the present arrangements.

This may all be more detail than most people want to know about the history of the US electoral system. However, I think that it is important to realize that the battle we face in resisting the efforts by a minority to control the electoral process is going to be a long and sustained struggle. There is really no such thing as an electoral system that is perfectly suited to all circumstances. The US presidential electoral system is far from that. It has seen some very rough spots in the nation's history and there has never been the political will to overhaul it. This is a fight that is going to be waged state by state. I suspect that Republicans will certainly come close to making the changes they want in some states and may succeed in a few. You can be quite certain that they will not be embarrassed by their failures and will keep on trying.      

Originally posted to Richard Lyon on Wed Jan 23, 2013 at 02:33 PM PST.

Also republished by Community Spotlight.

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